State v. Mitchell , 206 Or. App. 586 ( 2006 )

138 P.3d 60 (2006) 206 Or. App. 586

STATE of Oregon, Respondent,
v.
Thurman Michael MITCHELL, Appellant.

03CR1988; A124651.

Court of Appeals of Oregon.

Submitted on Record and Briefs May 30, 2006. Decided June 28, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Bronson D. James, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Solicitor General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA,^[*] Judges.

PER CURIAM.

After a trial to a jury, defendant was convicted of attempted burglary in the first degree, ORS 161.405; ORS 164.225, menacing, ORS 163.190, and telephonic harassment, ORS 166.090. On the conviction for attempted burglary, the trial court imposed an upward durational departure sentence of 32 months' imprisonment and 24 months' post-prison supervision based on its finding that defendant had been persistently involved in similar offenses. On appeal, defendant argues that the departure sentence violates the principles articulated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because it was based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or.App. 113, 133 P.3d 343 (2006), the sentence is plainly erroneous. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

NOTES

[*] Ortega, J., vice Richardson, S.J.